OPINION
iTunes and the Social Contract of Fair Use

I'm all for supporting the performing arts, and I agree with the constitutional notion that artists and inventors have a right to earn a living. But if it were not for my ability to make playlists and develop creative mixes of the music, I would have no incentive to pay 99 cents a copy for each "tune" I purchase for my iTunes music library.

The marvelous thing about the iTunes model was that it seemed to understand that, as a consumer of music, I wanted to be empowered to select and arrange my collection in my own sequence and share that spark of my own inventiveness with a few others.

But now I'm wondering why the Apple (Nasdaq: AAPL) iTunes service that seemed to understand me so well should suddenly betray me by not only telling me what an appropriate use of my playlist is but also giving me no option to extend my license to lawfully permit me to make one additional copy.

A Social Contract

Who in the legal department at iTunes decided that seven is the fair limit for my use of the legal copies I purchased? At what point does my creativity start to look like piracy to iTunes, which is clearly using its digital rights management (DRM) system to look over my shoulder as I interact with the collection of songs I have purchased for my music library?

So I was delighted to see fair use on the program at the recent SUA Information Industry Summit in New York. William Patry, Google's (Nasdaq: GOOG) chief counsel on the subject of fair use, offered a refreshing perspective to an audience that usually considers copyright to be the king, especially those "exclusive rights of copyright holders" provisions.

Patry observed that if the law is thought of solely as a property right, the law gives copyright owners and their agents the right to "just say no" to that eighth copy of mine, for no good reason at all. It would also include the right to say no to making a single copy in the first place, for example, if you were digitizing the entire collection of a reference library.

However, Patry reminded us that copyright is not just a property right but a social contract. The exclusive rights of property holders are to be fairly balanced with fair use, a privileged use that does not require the consent of the copyright holder ... a privileged use that does not require a license.

Don't Back Down

At the meeting, someone noted that the law has as much trouble defining fair use as it does in defining pornography. Yet, as with the latter, we (and the courts) are left to recognize it when we see it. But do we? Do we recognize and honor what the exceptions to our exclusive rights as copyright holders are? And do we actually believe our license agreements can override the fair use doctrine?

If Google can get away with digitizing entire library collections and making the contents globally accessible to all with commercial intent (the first legal test that would seem to disqualify Google for a fair use defense), who is iTunes to tell me that I can't make the eighth copy of a music set I want to share privately and non-commercially with a few close friends? Or maybe iTunes would like to claim in court that seven copies won't negatively affect the market, but the eighth one will.

I'm not a lawyer, but I'd like to see anyone argue convincingly that I needed a license at all to do what I did with these works, let alone a license that limited me to only seven copies.

Fair use is a trump card that we all hold. We should not permit ourselves to be intimidated by license agreements that try to tell us otherwise.